Mediation is where the two parties appoint an independent person who will not decide the dispute, but who will work with the parties to enable them to reach a settlement. He may try to help by evaluating the strength of the parties' cases, or by acting as a go-between in negotiations. Mediation takes place on a confidential and without-prejudice basis, until a settlement is reached with which both parties are happy. A high proportion of mediations are successful - according to some figures, about 80%. Give the fact that mediation can be rapid and informal, and far cheaper than legal proceedings; its increasing popularity is no surprise. Parties have full control over the process, as contrasted with what happens when court proceedings are commenced and proceed to judgement at trial. Mediation offers a viable and intelligent alternative. It is suitable in most types of disputes and is most valuable in that the mediator acts as a catalyst to the negotiation process and works with the parties to produce creative and workable solutions. A mediator will not usually tell the parties his or her own view on the dispute; it is job to act as a piece keeper so that an agreement can be made as quickly as possible. The mediator is not working against the parties. The parties and or their solicitors do not need to convince the mediator they have a good case. They need to convince the other side that any solution achieved through the mediation is more favourable than either side could achieve by going through court. However, a mediator can be asked for their opinion and in this case, the mediator becomes more of an evaluator, which again aims at ending the dispute. However, at the end of the day mediation is only suited if there is a hope that the parties can co-operate.
Conciliation is similarities to mediation in that a third person helps to resolve the dispute, but the main difference being that the conciliator will usually play a more active role I solving the dispute than a mediator. They may suggest grounds of compromise and to do the up most to settle the dispute quickly. This is the same as mediation in that it may not be that the case is resolved and may still end up in court.
Arbitration means appointing someone to hear both sides of the dispute and decide who is right. The arbitrator may be a lawyer or a surveyor, or some other sort of expert, or simply someone whom the parties to the dispute both trust. The process is confidential and so is any amount of compensation that the arbitrator awards. Sometimes the arbitrator makes their decision based on papers that each person gives them to support their case. At other times, they hold a hearing where both sides can present their cases. However, this is usually less formal than a court hearing. The actual procedure is left to agreement of parties in each case, so this means there are many forms of hearings. In some cases, the parties may opt for paper arbitration where both parties produce a report of their case with any points they wish to raise in writing. This is supported by any documents that may support their case. The arbitrator will then read all the documents and make his/ her decision. The date, time and place of the arbitration hearing are all matters for the parties to decide in consultation with the arbitrator. This gives a greater deal of flexibility to the parties and arrangement can be made which is convenient to both parties.
Tribunals operate alongside the court system and have become an important and integral part of the legal system.
However, unlike the other methods of ADR where the parties decide not to use the courts to solve their disputes you cannot go to court to solve disputes after deciding on a tribunal because it must be used instead of using the courts. There are many types of tribunals including social security tribunals, rent tribunals, mental health review tribunals and employment tribunals. The tribunals usually have a panel of three to hear a case the chair and two lay people with knowledge of the topic. The hearings are informal and in private except employment, tribunals are more formal and open to the public.
There are many advantages and disadvantages of using ADR and using the courts. The two parties may choose their own mediator or arbitrator and can be help at a time and place to suite both parties also being informal. The matter is dealt with in private and with no publicity and the case will be dealt with more quickly and cheaply than it would through the courts. In negotiation, mediation and conciliation sessions the two parties are in control and can stop the proceedings at any time. An agreement will be reached if both sides accept the proposal. Using ADR it does not involve like the courts in one person winning and the other losing. The courts will not get overloaded because a large amount of cases get settled without using the courts. The main advantages are that it is cost efficient, quick and informal. ADR is more interested in getting an agreement with both parties and will help to keep the relationship with the two parties. The arbitration can be enforced by law and are usually well established.
The disadvantages are that the other parties may walk away from the alternative and may still end up in court because an agreement is uncertain. Arbitration can be expensive to still cheaper than the courts and still has a winner loser outcome.
Question 3 Robbie Higginson 6th
